MUHAMMAD ISA Versus Mst. BHAGAN BIBI
AMIN-UD-DIN KHAN, J.--- Through this civil revision, the petitioner has challenged the judgment passed by learned District Judge, Sahiwal dated 07.09.1998 whereby appeal filed by the respondents/ plaintiffs was accepted and the matter was remanded to the learned trial Court while setting aside the judgment and decree dated 14.07.1996 passed by learned Civil Judge, Sahiwal rejecting the plaint of the suit under Order VII, Rule 11, C.P.C.
2. Brief facts of the case are that the respondents/plaintiffs, on 04.09.1995, filed a suit for declaration and permanent injunction. The written statement was filed by the petitioner/defendant No.2 and suit was contested. The learned trial Court while deciding the application for interim injunction on 14.07.1996, was pleased to reject the plaint under Order VII, Rule 11, C.P.C. The respondents/plaintiffs preferred an appeal against the said order before the learned first appellate Court and prayed for setting aside the said order of the learned trial Court. The learned first appellate Court was pleased to accept the appeal vide judgment dated 07.09.1998 and remanded the matter to the learned trial Court. Hence, this civil revision by the defendant No.2/petitioner.
3. Respondent No.4 is represented by the learned AAG whereas no one appeared on behalf of the respondents Nos.1 to 3, therefore, they are proceeded against ex parte.
4. Learned counsel for the petitioner argues that the suit was not competent as the order of Addl. Commissioner dated 28.04.1994 was challenged but he was not made a party in the suit. Further states that the plaintiffs/respondents have not exhausted their remedy available to them before the Board of Revenue and have directly filed the suit before the civil court which was barred and not competent. Further states that the learned District Judge has not bothered to attend the objection raised by the petitioner/defendant No.2 that in appeal, no decree has been challenged whereas while rejecting the plaint under Order VII, Rule 11, C.P.C., actually a decree was prepared but the same was not challenged before the learned first appellate Court and therefore, the first appellate Court was not competent to set-aside the order/judgment of the learned trial Court, therefore prays that the instant civil revision be accepted and the judgment/remand order passed by the learned first appellate Court be set-aside and the order/judgment of learned trial Court be restored.
5. I have heard the learned counsel for the parties and gone through the pleadings and the findings recorded by both the courts below.
6. I agree with the arguments of learned counsel for the petitioner that when the order of Addl. Commissioner has been challenged without getting appropriate remedy before the revenue hierarchy, filing of the suit was not competent. Light can be taken from the judgments of the august Supreme Court of Pakistan in case "Administrator, Thal Development and others. v. Ali Muhammad" (2012 SCMR 730), "Zahid Hussain and others v. Shamasuddin and others" (2014 CLC 1334), "Alam Sher through LRs. v. Muhammad Sharif and others" (1998 SCMR 468), "Muhammad Nazir v. Muhammad Yousaf and others" (2012 MLD 439), "Muhammad Yousaf Khan Bugti and others v. Province of Sindh and others" (2013 CLC 1155) and "Khamiso Khan and others v. Jamaluddin" (2015 MLD 356). For further light, I take the benefit to quote para-9 of the judgment reported as 2012 SCMR 730 as follows:-
"Another legal aspect of the case, which also materially affected the maintainability of the suit before the Civil Court in terms of section 9, C.P.C., but escaped the sight of the Court below is the availability of remedy of appeal against the impugned resumption order dated 27.04.1985 in the hierarchy of revenue laws in terms of section 161 of the Land Revenue Act 1967, which was admittedly not availed, but impliedly barred the jurisdiction of the Civil Court in such matters where the jurisdiction to adjudicate exclusively vested with the revenue Courts."
7. The second point that only the judgment/order has been challenged before the learned first appellate Court, I am clear in my mind that an appeal lies against the decree when a plaint is rejected and in this case when the decree sheet was prepared and the appellants/plaintiffs have not challenged the decree, even learned first appellate Court through remand order has not set-aside the decree. Without setting aside the decree, the court was not competent to reverse the findings of the learned trial Court and on the basis of reversal of the findings only the case could not be remanded back without setting aside the decree. In this regard, reliance can be placed on case "Muhammad Ali and others v. Province of Punjab and others" (2009 SCMR 1079), "Memon Educational Board and Society, Karachi. v. Munawar Hussain" (2003 SCMR 157), "Rana Allah Ditta v. Muhammad Shafi and others" (1990 MLD 2094), "Noor Ali and others v. Muhammad Uris and others" (2000 YLR 1564), and "Khaista Khan. v. Senior Member, Board of Revenue, N.-W.F.P., Peshawar and others" (2001 CLC 1847). I quote para-6 of the judgment passed by the august Supreme Court of Pakistan reported as 2009 SCMR 1079 as follows:-
"We have heard learned counsel and are not impressed by either of the contentions. In the first place an order rejecting a plaint is most certainly a decree in terms of the definition of the expression "decree" contained in section 2(2), C.P.C. which explicitly provides that the aforesaid expression shall be deemed to include the rejection of a plaint. It would, therefore, follow that it would carry the same degree of finality and enforceability unless provided otherwise by law. As such after the expiry of the period of limitation for a second appeal against the order, dated 21.02.2005 passed by the learned Additional District Judge the order rejecting the plaint acquired complete finality."
8. In this case, even the decree sheet was drawn and has not been challenged, therefore order of the learned first appellate Court is not sustainable under the law in the light of the judgment referred supra.
9. Finally, the jurisdiction of the learned trial Court when the suit is not proceedable is vested under Order VII, Rule 11, C.P.C. In this regard, light can be taken from the judgment of the august Supreme Court of Pakistan in case "Noor Din and others v. Additional District Judge Lahore and others" (2014 SCMR 513), "Gulistan Textile Mills Ltd. v. Askari Bank Ltd. and others" (PLD 2013 Lahore 716) and "Shahzada v. Khairullah others" (2012 CLC 773).
10. In the light of the judgments noted supra, for rejecting a plaint, filing of an application by the other side is not necessary.
11. In these circumstances, the learned trial Court exercised correctly its jurisdiction vested in it by law while the learned first appellate Court has exercised its jurisdiction not vested to him by law. In this view of the matter, I accept the instant civil revision and set-aside the impugned judgment dated 07.09.1998 passed by learned District Judge, Sahiwal remanding the matter to the learned trial Court. The result would be that the order passed by learned trial Court dated 14.07.1996 is restored.
ZC/M-235/L Case remanded.